Judiciary Archives

(Yes, it’s been a while since I blogged here. I’ve been busy with my podcast “Consider This”. However, I just had to come out of blogging semi-retirement to comment on this.)

Being argued today at the high court is King v Burwell, a lawsuit against ObamaCare (also known in some circles as the Affordable Care Act). This is a set of questions and answers that I imagine many people have about this.

Q: What is this case all about?

A: The crux of the issue is a 4-word phrase inside the massive law; “established by the States”. The subsidies supplied by the IRS, according to the text of the law, were to only go to those who applied for insurance via exchanges “established by the States”. If they used the federal exchange (HealthCare.gov), that is not “established by the States” so the subsidies wouldn’t apply.

That’s according to the plain language of the law, and according to Jonathan Gruber, a major influence in the creation of the law.

What happened was that the IRS gave out subsidies to those without state exchanges anyway. The lawsuit is saying that the government broke the law in doing so.

Q: What case is the government making?

A: That the rest of the law, taken as a whole, makes it clear that withholding subsidies from those who didn’t get their insurance via exchanges “established by the States” was not the intent.

Q: Does it actually say in the law somewhere, specifically, that those people should get subsidies?

A: Not that I’ve read. In fact, those articles I’ve seen that have written in defense of the subsidies (like this article by Robert Schlesinger in USA Today) don’t cite any other text that would buttress that opinion. Rather, they argue about the results if the subsidies were overturned.

To me, that sounds like they’re arguing that a law should say what the implementers want it to say, regardless of what the law itself says. That’s a precedent I don’t think we want to create. For example, if a Republican President vetoes legislation, and a Democratic Congress overrides that veto, is the President free to implement the provisions of the law he or she likes and ignore others? I’d say No, and I think those arguing for the ObamaCare interpretation would agree with me if the parties today were reversed.

The IRS did issue a ruling saying that they would, in fact, give subsidies to those in states without exchanges, but as far as I’m aware, the IRS is not part of the legislative branch.

George Will, writing in the Washington Post, highlights a very novel lawsuit working its way through the courts. Essentially, the thought process of the suit goes like this:

The Constitution says explicitly that, “All bills for raising reveornue [that’s the 1700s spelling of “revenue”] shall originate in the House of Representatives”.

The ObamaCare bill originated in the Senate. No problem there, but…

The Supreme Court, in what Will calls a “creative” reading of the law, called the bill a “tax” on certain activity (or, in the case of ObamaCare, inactivity).

As a tax, it is therefore a revenue bill, but it did not originate in the House, and is therefore unconstitutional.

Ya’ gotta’ wonder if Chief Justice John Roberts played rope-a-dope with the liberals on the bench in creating this particular interpretation, and was hoping someone out there would notice.

There are some other issues with how the bill was created, and reading this short piece, from a link in the show notes, is incredibly enlightening. Keep an eye on Matt Sissel and the Pacific Legal Foundation’s lawsuit. We may be hearing about it more prominently in the months to come.

Good news on the religious liberty front. Gabriel Malor writing at Ace of Spades give a great rundown of the main points of the district court judge’s ruling with regards to forcing the Catholic Archdiocese of New York to cover, or exempt themselves, from the ObamaCare™ requirement that they cover contraception or abortion. In a snark-less post, it’s just a matter-of-fact examination of the ruling, and why this may have a very tough road to the Supreme Court, assuming it’s appealed that far.

Some highlights (but, as they say, read the whole thing):

This is the first litigation to result in a final injunction against the contraception mandate for religious non-profit organizations that come within the Obama Administration’s purported exemption to the mandate.The 7th, 10th, and D.C. Circuit Courts of Appeals have all found the mandate to be an unacceptable burden on the free exercise of religion for for-profit businesses that don’t come under the exemption. This case is important, though, because it recognizes that even the act of having to claim the exemption is an unacceptable burden on religion.

…

Very late in this case, the government realized that, although the Archdiocese and its constituent organizations are covered by the mandate, the regulations might not actually force a third party they designate to provide the objectionable contraception coverage. The judge was not amused:

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The Obama administration has handed out so many exceptions to the law, it can no longer claim the law serves a compelling purpose.

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The administration, as it has frequently done with respect to disobeying laws it does not like, argued that it had to enforce the contraception mandate in such an infringing manner because it could not do it any other way. The district court pointed out the obvious flaw in this line of thinking:

Same-sex marriage got a gentle nudge from the Supreme Court in the recent ruling on the Defense of Marriage Act. But, as much as it seems that it’ll be a state-by-state issue, a court ruling in late July suggests that same-sex marriage anywhere may mean same-sex marriage everywhere. A federal judge in Ohio ordered state officials to recognize the marriage of two men who were married in Maryland, for the purposes of listing on the death certificate of one that he was married to the other.

Yeah, it’s just a blank on a form being filled in, but if it stands, it would be a legal precedent that could easily be built upon. So here’s the question for same-sex marriage proponents. Do you really believe this should be decided by each state, or should it be handed down from the federal government? If the former, you should be against this judge’s action. If the latter, you should be letting us all know. My guess is that if people knew that proponents are looking to force this on all states, there would be quite the backlash. And so, in the meantime, it’s not spoken of much in polite company. After all, if you think the federal government shouldn’t define marriage via DOMA, then it shouldn’t define marriage, period.

And the people of Ohio would get to choose how to deal with this situation themselves.

[This is part of the script from the latest episode of my podcast, "Consider This!"]

The Supreme Court said that the people of California have no standing to defend a constitutional amendment that they passed if the state won’t defend it. It’s now open season on laws that state administrations don’t like. Exhibit A.

Pennsylvania attorney general Kathleen Kane announced Thursday afternoon she will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”

Who promoted her to judge? Whether or not it’s unconstitutional is not her call to make. The Attorney General represents the state and defends its laws; all of the state and all of its laws.

If a state Attorney General refuses to defend those laws, that’s an abdication of his or her primary responsibility; their oath of office. AGs do not (or at least should not) have this prerogative. Otherwise you’ll have one set of laws when one administration is in power, and another set for another administration.

The Supreme Court said that they’re leaving it up to the states to decide what marriage is. But are we leaving it up to the state governments or to the state’s people?

The Prop 8 ruling was perhaps more troubling than even DOMA. The Supremes decided, cutting across ideological lines interestingly, that the people of California had no standing to bring their own challenge against the ruling of a judge that Prop 8, which created a state constitutional amendment defining marriage, was unconstitutional. Here’s a graphic I found that describes the problem the best.

While I’m against true direct democracy (the ol’ “two lions and a sheep voting on dinner” analogy), the proposition feature of California law has a high enough bar to clear to get something on the ballot to safeguard that. But now the people’s will can be simply ignored, with the ruling of a single judge, and we, the people, have no standing to challenge it at the Supreme Court. Wow.

In the recent spate of rulings from the Supremes were two that dealt with same-sex marriage; the Defense of Marriage Act (or DOMA), and California’s Proposition 8. I’ll look at Prop 8 tomorrow.

The portion of the DOMA law that was ruled against is a provision that denies benefits to legally-married gay couples. Gay couples, under federal law, will now be considered “married.” The DOMA vote was 5-4, with Justice Kennedy writing for himself and the liberals on the court. He wrote that DOMA is a violation of, “basic due process and equal protection principles applicable to the federal government.” Very interestingly, he also pointed out that DOMA infringed on states’ rights to define marriage.

Having just written about the Voting Rights Act yesterday, let me just say that that last observation is almost humorous coming from the liberal justices. The same people who said that 50-year-old data is sacrosanct in one ruling, said, in another ruling released the same day, that the definition of marriage, which has been defined for millennia, is just a states’ rights issue. The duplicity and blind partisanship is simply breathtaking.

In one respect, I agree with the DOMA ruling, regarding the idea that the federal government doesn’t need to be in the business of defining marriage. Now, I don’t thinks states should do that either, but it sets a precedent, that marriage is decided at the ballot box. It isn’t. And besides, regarding federal involvement, it’s the states that give out marriage licenses, not DC. So from that angle, it does make sense. Sort of.

The problem is, some states have decided to insert government into marriage like it has never been before. Glenn Reynolds, one of the most popular bloggers out there, the Instapundit, has been voicing his support for the repeal of DOMA by saying that government should get completely out of marriage. But as I have said before, when the government defines marriage, it is completely in the issue. Politics and PR will now define marriage. It didn’t need formal definition before, because it was almost universally agreed that it was one man and one woman. Cultures and religions, outside of government, defined marriage. All the state did was sanction what had already been decided. Back in episode 38, I discussed this in detail, so there’s a link in the show notes if you want to catch up on that. But basically, now that states decide what marriage is, the logical end of this is that marriage will mean what anyone wants it to mean, which means it will be meaningless. Since states were redefining an already well-defined term, it fell to the federal government to bring a little order and common sense to this chaos. I didn’t like it, but didn’t see any other good way out of it.

A portion of the Voting Rights Act of 1965 was struck down by the Supreme Court. The Act itself wasn’t chucked, just the way that it was determining which states came under it. The era of poll taxes and literacy tests are gone, and the disparity between whites and blacks regarding voter participation have been erased. The state with the largest gap between white and black voter turnout these days is Massachusetts, for cryin’ out loud. And in Mississippi in the 21st century, black turnout exceeds white turnout. But the VRA was still punishing the South for race disparities in voting that have long been remedied.

So then, is 50-year-old data better than current information when trying to determine who should come under the Voting Rights Act? Have we learned nothing from the mistakes of the past? The four liberal Supreme Court justices, Attorney General Eric Holder, and President Obama would answer No to both those questions, at least based on the outrage they feigned over the ruling. They can’t seem to bring themselves to believe that progress has actually occurred. Or they’re pandering to their base. Either way, to call requiring these stats to be updated “turning back the clock” is cognitive dissonance of the highest order. The request is that the clock be turned forward, and Democrats are against it. Or they are pretending to be against it, and hoping that their base isn’t paying attention.

If you are a Democrat, and you’ve wondered why Republicans are often wary of laws that try to remedy sins of the past, this is exhibit A. Here is a law trying to do such a thing, but it’s stuck in the culture and racism of the 1960s, and any attempt to acknowledge repentance from those sins is taken, by liberals, to be just as bad. And if you want to take politically corrective legislation like the Voting Rights Act and update it for today’s reality, you must be racist.

Ronald Reagan quipped that government programs are the nearest thing to eternal life we’ll ever see on this earth. But the Supreme Court didn’t do away with the VRA, it just said that it should be relevant. Those politicos that spoke out against this eminently reasonable decision are, in my mind, just as irrelevant as 50-year-old statistics.

Episode 36 of my podcast, "Consider This!", came out this morning. Here’s the (slightly edited) script for one of the segments regarding the call for "marriage equality".

When the Supreme Court took up two cases regarding same-sex marriage recently, Facebook lit up with red equal signs of people proclaiming their support for what they call “marriage equality”. And that’s how I’ve heard the debate framed by supporters for years, as an issue of equality. One group gets to do something that another group doesn’t. Where’s the sense of fairness, of everyone being equal under the law?

Well, to understand the underlying problem here, let’s take two other areas where one could demand equality. Let’s look at voting and driving. Are you for voting equality and driving equality? Should some voting or driving laws be different for different people, or not even available at all to some?

Let’s take a group of people I’ll call blind people. Now, should they have both voting and driving equality? I’m going to hazard a guess that you said yes to voting but no to driving. I don’t need to be a mind-reader to get that one right. But, but, equality! What about equality? Shouldn’t we really be taking to the streets and demanding the Supreme Court rule on driving equality for the blind?

No, of course we shouldn’t. But why equality for one thing and not another? Steven Smith, a Professor of Law at the University of San Diego, wrote an article using this example of why we treat the two situations differently.

That is because an ability to see is not a relevant qualification for voting, but it is a relevant qualification for driving. We know this, though, not by applying the idea of “equality,” but rather by thinking about the nature of voting and of driving. Probably there is no disagreement about these particular conclusions. But if you did happen to encounter a good-faith disagreement, you would not be saying anything helpful if you thumped the table and declared that “blind people should be treated equally.” You would only be begging the question.

You can’t drive if you’re blind, or under a certain age, or haven’t taken a driving test. Heck, you can’t vote if you’re a felon, or under a certain age, or mentally incompetent. So even with voting, there are inequalities. And therefore, just demanding marriage equality, without considering the nature of marriage, is useless.

And so what, then, is that nature of marriage? That’s the next logical question, and something I will be taking up in a subsequent episode. Until then, I have another link in the show notes to a rather lengthy paper by the Heritage Foundation on what marriage is, why it matters, and the consequences of redefining it. I’ll be pulling points from it for when I tackle this subject later on. You may want to take a look at it and perhaps write or call with your thoughts to be included in the episode.

But this foundation of the issue of equality needs to be laid first. Suffice to say, for now, that just spouting “Equality” with your fashionable, red equal sign doesn’t really mean much. It’s not an argument. It’s not a reason. It’s just a slogan.

Note: I started writing this with the notion that the category error alluded to below was a mistake and a sidelight hiding behind the issues being argued. As I continued in writing I have come to believe that the category error is both the primary reason for the arguments and further is a fundamental problem which is well known.

Much wroth, fury, words, and accusations of ignorance, bigotry, and perversion have crossed from both sides in the recent decades long struggle by various factions in the debates about marriage and who might be married rightly. A few observations

Defenders of SSM remark that this sort of marriage is private and affects none outside of the marriage. Yet, if this were so, then why would not civil unions suffice? The logical answers is because this reply is a lie. It does in fact affect others and in this lies a category error to which I alluded in this essay’s title.

To read the papers and hear the debates this is an important issue. Yet, why is that? Why is that more important than other issues. As that famous statistician Bjorn Lomberg pointed out that getting vitamin supplements to the third world would saves tens if not hundreds of millions of lives (and would be cheaper and more effective than most of the aid we send to the third world), world-wide millions are affected by human trafficking indeed the numbers trafficked within the states is comparable to those affected by SSM … and those affected are mostly well educated affluent couples. Yet what debates are heard?

How are these issues a sidelight issue and the other a hot button issue? I suspect my I offer it is because those entrenched against SSM are also committing that same category error. What is the error of category to which I allude? Simply the following, laws and lawmakers are not our spiritual guides. Note, the use of the term “spiritual” is not the normal one, but one which I will continue in this essay and perhaps in further essays.

So let me digress for a moment. Spiritual? What is that? In the introduction to Dimitru Staniloae’s book (Orthodox Spirituality), it is pointed out that in the EasternChristian doctrine, your spiritual life and its tending is perhaps better translated as your ethical life and its care. Spiritual health and ethical well being are synonyms.

What is legal or not and what is righteous (in good spirit or a good moral/ethical decision) are independent. This is a founding principle of American jurisprudence. (Or is it?) It certainly is the assumption now. Mr Daschle defended a Senatorial philandering colleague by pointing while he while he was dishonest he didn’t break any laws. The correct reaction to this is that the colleague got his priorities exactly backwards, i.e., it is more important to be ethical than stay on the right side of the law.

Laws are not ethics. Laws and what lawmakers conspire to create has very little to do with ethics and instead its primary purpose is to provide a framework. This framework provides so that peoples may live harmoniously alongside each other in an ordered way. So that, when conflicts between people arise, there is an orderly way of handling those same conflicts. Personal ethics overrides and sits over the law. For the most part, there is no conflict, most of our choices, our ethical decisions do not lead us toward choices which are illegal. Where they do, it is right, it is correct to choose the ethical over the legal. On the other hand, there are things you may do legally which however are not ethical. Even where there is no conflict, normally ethics binds our actions tighter than the law.

Solzhenitsyn warns that this separation that is part of modern Western democracies (and was part of the former Soviet state) is an error. That itself is an interesting counter point. So it seems likely that this why this debate is important is not what it is about, but sort of the issue is the ground on which it is being made. What is at stake is perhaps not about the particulars of whether certain young dinks (dual income no kids) can have their relationship legalized or not but really what is being debated here and in other forums is whether law should be neutral or be admitted to have spiritual (ethical) content or should it not. Kant (and our founders) explored law devoid of ethics, can a safe lawful republic of demons (not angels) be constructed or not. Perhaps it can. Perhaps it can’t. The question at hand is should it? Recall the Ratzinger/Habermas debate, debating whether a democratic society can be constructed and sustain itself independent of religion, i.e., “does it need things outside itself to sustain itself.” Ratzinger and Solzhenitsyn think not. Bertrand de Jouvenal pointed out in his meta-political science musings about what he termed Babylon (the large multicultural state) envies the unity of the small state. My reading of Solzhenitsyn (and Jouvenal) is that a solution exists. If the larger federal state limit itself to promoting commerce and unity between smaller entities within itself, while foster their ability to form strong local identity, laws and praxis then you could have the best of both worlds. You can find local loyalties and ties and bonds within the framework a larger multicultural state.

Both sides of the cultural debate miss this point. Both sides wish to apply the same laws and sensibilities in artists boroughs of San Francisco, in Amish villages in Ohio, in rural Lutheran Wisconsin, and so on. Why? Why try? It seems wrong to insist that behavioral norms universal.

Locally laws can be tied to spirit. Federally, the are not, but there they run to the Habermas separation of Spirit and law. It seems to me laws about birth, death, marriage are those which the federal level should keep its hands away, to set aside for local regions to coin their own practices, to tie their own view of ethics and spirit what is allowed, to what is righteous in their region.

Instead of insisting that laws be spiritual or devoid of spiritual considerations is wrong. Federal laws laws which bind us all, might be best be light and aim only to promote commerce, unity, and ease frictions. Local laws … let them tangle and wind the ways the local choose. That is, after all, nothing more than freedom.

Maybe this is why I’ve not been blogging much. Well, it’s certainly a contributing factor.

The latest episode covers the fight of North Carolina pro-choicers against a license plate that advocates a choice, and a rundown of how well the Washington, DC gun ban reduced homicides (hint: it didn’t).

Forty years and 50 million lives ago, Roe v Wade was decided, and the Supreme Court federalized all state abortion laws, by somehow finding a right to kill your unborn child in the Constitution. Justice Byron White said as much in his dissent.

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

Fifty million children. If they had died from gunshots, the Left would realize the tragedy. As it it, it’s just "choice".

Hobby Lobby had filed suit to block the ObamaCare contraception mandate. They lost round 1.

As a “secular” corporation, they have no rights to use the religious beliefs of their ownership as a justification not to abide by the contraception mandate. This decision is inconsistent with the Tyndale House one you may have heard about. So apparently being a Bible publisher does make you religious, but being a Bible seller doesn’t.

The argument the administration advanced successfully in the Hobby Lobby case is a particularly troublesome one for believers of all faiths who operate under the assumption that they can use their moral principles to guide the way their place of business spends money. According to the administration’s legal arguments, the family that owns Hobby Lobby is not protected by the First Amendment’s "free exercise" clause because “Hobby Lobby is a for-profit, secular employer, and a secular entity by definition does not exercise religion.”

Hobby Lobby is an all-American success story if there ever was one. Read the whole thing for their history. But now, with ObamaCare breathing down our collective necks, you lose your religious freedom the minute you start a company.

The company remained all privately owned, with no franchising. Their statement of purposes and various commitments all begin with Bible verses, commitments to honor the Lord. The Hobby Lobby folks pay well above minimum wage and have increased salaries four years in a row despite the recession. They are teetotalers of the old Oral Roberts variety, refusing to stock shot glasses, don’t sell any of their store locations with liquor stores, don’t allow backhauling of beer shipments – all things that could make them money, but they just bear the costs. Every Christmas and Easter, the Hobby Lobby folks advertise a free Bible and spiritual counseling. They are closed every Sunday. The family also signed the giving pledge, committing to donate the majority of their wealth to philanthropy.

So: I doubt this is the type of company to spend one dime on this contraception mandate. They will just drop coverage, and pay employees the difference, shifting them onto the exchanges or the taxpayer, rather than compromise their beliefs. It’s logical, it’s more predictable as a budgeting choice, and it will save them tens of millions in the long run versus retaining coverage and paying the fine.

I have to wonder if this wasn’t part of the plan all along; a self-fulfilling prophesy of the need for state insurance exchanges by forcing, in part, religious people who happened to have started a business to join them. That’s a little cynical, I’ll agree, but it’s tough to understand this blatant contravening of freedoms in the very first Amendment.

Arguing that a corporation isn’t a person is one thing. Arguing that you stop being one when you create one is another one entirely.

An interesting reasoning that Judge Alan Kay used to uphold the law (emphasis mine).

HONOLULU (BP) — A federal court has refused to legalize gay marriage in Hawaii, ruling the issue is best addressed by the legislature and that the current law — which defines marriage as between a man and a woman — does not violate the U.S. Constitution.

The ruling by Judge Alan. C. Kay Wednesday (Aug. 8) broke a string of court losses by traditionalists on the subject of gay marriage.

At issue in Hawaii was a constitutional amendment passed by voters in 1998 giving the legislature the power to define marriage in the traditional sense, which legislators subsequently did.

A lesbian couple and a gay man filed suit in federal court last year against Hawaii officials, arguing the amendment and law violated the Due Process and Equal Protection Clauses of the U.S. Constitution. But Kay, nominated by President Reagan, ruled the legislature had a rational interest defining marriage as between a man and a woman.

"Throughout history and societies, marriage has been connected with procreation and childrearing," Kay wrote in his 117-page decision. "… The legislature could rationally conclude that on a societal level, the institution of marriage acts to reinforce ‘the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.’"

The legislature, Kay wrote, could "also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex."

"Both sides presented evidence on this issue and both sides pointed out flaws in their opponents’ evidence," he wrote of parenting. "Thus, the Court concludes this rationale is at least debatable and therefore sufficient."

The issue, Kay added, is up to the legislature.

He deferred to the legislature when the point was debatable. What’s very interesting about this is that it is essentially the reasoning Supreme Court Chief Justice John Roberts used to uphold ObamaCare; a decision that liberals hailed. While Roberts rewrote the law to make the individual mandate a tax (not something I agree he could or should do), he then concluded that it was within Congress’ power and deferred to them.

This is the very opposite of judicial activism, and what they’re supposed to do; judge the law and not redefine it.

Episode 5 of the "Consider This!" podcast is out today and it’s all about a single topic, so I thought I’d post the script here for those who don’t do podcasts. If you do do podcasts, click here for the show notes and ways to subscribe, or just listen, to the show.

I mentioned previously that while the individual mandate was struck down as an exercise of the Commerce Clause, it hung in there as an exercise of the taxing authority of the federal government. That is to say, the way it was sold to the American people, and the way the Obama administration is continuing to try to defend it, is unconstitutional. By being given the authority to regulate commerce, Congress cannot force you to engage in commerce so that they can then regulate it. However, if arranged in a way such that you have to pay a tax if you don’t comply, well then it’s all hunky-dory. So then, when you hear Democrats insist that the mandate is not a tax, as they have been saying, remember that they are therefore arguing that it’s unconstitutional. They’re trying to have their mandate and eat it, too.

The main reason they’re arguing that it’s not a tax — going against a Supreme Court ruling that they are ostensibly in favor of — is because of the legislative ramifications. A tax can be repealed on a bare majority vote, and is not subject to a 60 vote Senate filibuster. This makes it much easier for, say, a President Romney and a Republican House and Senate to repeal. I would have thought that trifecta tough to accomplish this November, but with this ruling, I suspect a fire is going to be lit under many a conservative, and I hope that this translates into votes. I think Democrats, too, see this scenario as more plausible today than it was before the ruling, which is why they’re trying to make this particular hard sell. Billy Mays, the TV pitchman who used to try to sell you so many handy items, would be proud.

If you insist, against the advice of the Supreme Court, that the Commerce Clause should be good enough to implement a mandate, consider this. The intention of the clause itself was a negative power; a preventative, restraining one. It was written so that there was an authority to appeal to when there were trade disputes among the states. It was never intended to be a positive power by the federal government; one that allowed it to act on its own. Those aren’t my words. Those are James Madison’s. But hey, he’s just what some people call The Father of The Constitution. What would he know?